Casper Tsvangirai v Zimasco (Pvt) Ltd and Others

On 10 June 2008, the plaintiff entered into an agreement to sell stand 1004 Redcliff Township to the 1st defendant (Zimasco), facilitated by the 2nd defendant (Baobab Real Estate) through Albert Tsikira. The plaintiff alleged that the agreed purchase price was the Zimbabwe dollar equivalent of US$180,000 at the prevailing informal market rate on the date of payment. He signed the last page of the agreement and a power of attorney on the understanding that transfer would only occur upon receipt of full payment. The plaintiff claims that after he signed, the defendants fraudulently removed and altered pages of the agreement, changing the purchase price to Z$720 trillion and forging his initials. Payment of Z$720,000 (revalued) was made on 13 June 2008, which plaintiff contends was equivalent to only US$96,000, leaving a balance of US$84,000. The defendants deny the allegations and maintain the purchase price was Z$720 trillion with no US dollar component. Transfer was effected via Deed of Transfer No. 1906/08. The 1st defendant counter-claimed for eviction, arrear rentals and holding over damages.

• Whether the agreement of sale was fraudulently altered by the defendants
• What the true purchase price was - Z$720 trillion or the Zimbabwe dollar equivalent of US$180,000
• What the applicable exchange rate was for determining the Zimbabwe dollar equivalent
• Whether the date of payment for purposes of determining the exchange rate is when the transfer application was made or when funds were credited
• Whether the plaintiff's signing of a blank power of attorney precludes his fraud claim (caveat subscriptor principle)
• Whether absolution from the instance should be granted at the close of plaintiff's case
• Whether the first defendant's counter-claim for eviction and damages should be granted on an absolution application

The application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted was dismissed with costs.

Where a plaintiff alleges fraud in the alteration of an agreement of sale and produces evidence (including admissions from the defendant's own legal practitioner) that supports a version different from the defendant's pleaded case, a court should not grant absolution from the instance at the close of the plaintiff's case, as there are material factual disputes that require the defendant to lead evidence. Furthermore, it is not competent for a court to grant substantive relief on a counter-claim at the absolution stage, as doing so would improperly terminate the plaintiff's right to pursue the claim and would constitute a final determination without the benefit of a full trial. An order of absolution from the instance, being interlocutory in nature, should not be converted into a mechanism for granting final relief on a counter-claim.

The court made obiter observations regarding: (1) the principle that when payment is made by cheque or bank transfer, the date of payment for legal purposes is when the application for transfer is made, not when funds are credited - though the court did not decide this issue definitively; (2) the caveat subscriptor maxim (let the signer beware) in relation to signing blank powers of attorney, noting this principle may be overridden by allegations of fraud but not deciding the point; (3) the difficulty in determining whether the plaintiff's statement about reasonable rentals amounted to a confession of indebtedness; and (4) the novel nature of the procedure sought by the 1st defendant in asking for its counter-claim to be granted on an absolution application, noting it would set a concerning precedent if allowed.

This case is significant in Zimbabwean jurisprudence for establishing important principles regarding: (1) absolution from the instance applications where fraud is alleged and documentary evidence from the defendant's own legal practitioners contradicts their pleaded case; (2) the impropriety of granting substantive relief on a counter-claim at the absolution stage, as this would effectively terminate the plaintiff's rights without a full hearing; (3) the treatment of agreements made during Zimbabwe's hyperinflation period where purchase prices were denominated in foreign currency but payable in local currency at informal exchange rates; and (4) the interplay between the caveat subscriptor principle and allegations of fraud in property transactions. The judgment emphasizes that where there are material disputes of fact, particularly involving allegations of fraud and contradictory documentary evidence, absolution should not be granted.