Cassim Sibanda (On behalf of Nathan Madzwanya and Kudzanai Madzwanya) v Bernadette Mujuru

In September 2008, the respondent (Bernadette Mujuru) entered into an agreement of sale with Nathan Madzwanya and Kudzanai Madzwanya for the purchase of a house in Khumalo, Bulawayo for US$150,000 payable in installments. The purchasers breached the agreement by failing to meet payment obligations, having paid only US$80,649.28 towards the purchase price. The parties agreed the sale could not be consummated due to the purchasers' fault. On 2 June 2010, the respondent obtained a court order invoking clause 13 of the agreement, which allowed her to cancel the agreement, resume possession, and retain 15% of payments made (US$12,097.39) as penalty. She was required to return the balance of US$68,551.88 to the purchasers but failed to do so. The purchasers, through their agent Cassim Sibanda, issued summons on 15 June 2010 claiming the outstanding amount. Summons was served on 19 August 2010, the respondent entered appearance to defend but filed no plea, prompting the application for summary judgment.

• Whether the application for summary judgment should be granted
• Whether the proceedings were fatally defective because instituted by an agent in his own name rather than in the names of the principals
• Whether the respondent had a bona fide defence based on a claim for damages under clause 13 of the agreement of sale
• Whether section 5 of the Contractual Penalties Act [Chapter 8:03] prohibited the respondent from claiming damages after already claiming and receiving a penalty stipulation

The court ordered: (1) The respondent to pay Nathan and Kudzanai Madzwanya through their agent Cassim Sibanda the sum of US$68,551.88 on or before Friday 1 April 2011, failing which stand number 6813 Bulawayo Township of 6872 A Bulawayo Township measuring 2331 square metres be sold by public auction or private sale conducted by the Deputy Sheriff to recover the sum with the defendant receiving any balance; (2) The respondent to pay interest on US$68,551.88 at the prescribed rate of 5% per annum from 2 June 2010 to date of full payment; and (3) The respondent to pay costs of suit on an attorney and client scale.

The binding legal principles established are: (1) Under section 5 of the Contractual Penalties Act [Chapter 8:03], a creditor who has already claimed and received a penalty stipulation is prohibited from subsequently claiming damages, as they cannot claim both the penalty and damages, nor damages in lieu of penalty; (2) Where an agent institutes proceedings in his own name but clearly indicates on the face of the application and summons that he is acting on behalf of named principals, this procedural irregularity, while wrong, is not so fatally defective as to vitiate the proceedings (following Sentrakoop Hendelaars Bpk v Lourens & Anor 1991 (3) SA 540 (W) and Hallis & Co. v Eastern Districts Sporting Club 1909 TS 450); (3) A defendant who raises a defence knowing it to be legally untenable and dishonest will not be able to resist summary judgment and may face punitive costs on an attorney and client scale.

The court observed that the respondent's claim not to know Cassim Sibanda could not be true as she had dealt with him during negotiations for an out of court settlement and knew he represented Nathan and Kudzanai Madzwanya. The court also noted that although the applicants' papers contained a number of mistakes, these were not so serious as to be classified as triable issues, and there was no possibility of the respondent succeeding as she did not have a plausible case.

This Zimbabwean High Court case demonstrates the application of contractual penalty provisions and the statutory restriction under section 5 of the Contractual Penalties Act on claiming both penalty stipulations and damages. It also illustrates the court's approach to procedural irregularities where an agent institutes proceedings in his own name but clearly indicates he is acting on behalf of named principals, confirming such defects are not necessarily fatal. The case reinforces that courts will not countenance dishonest defences raised solely to delay enforcement, and will mark their displeasure through punitive costs orders on an attorney and client scale.