The applicants (husband and wife) entered into an agreement of sale on 13 October 2017 to purchase Stand 5369 measuring 622 square metres from the first respondent for US$21,000. The first respondent was the registered owner of the mother stand which he had subdivided. The second respondent acted as the first respondent's agent pursuant to a Special Power of Attorney dated 5 July 2016 to sell the subdivided stands. The applicants alleged they paid the full purchase price and sought to compel transfer of the property into their names. The first and second respondents disputed full payment, claiming US$4,000 remained outstanding from January 2018. The applicants relied on a bank statement showing an RTGS $4,000 payment on 21 September 2020 (though their answering affidavit stated 27 October 2020) as proof of final payment. The fifth respondent was later joined, claiming he was the owner as he had purchased the same stand from the second respondent before the applicants.
The application was dismissed with costs. The court did not address the issues raised by the fifth respondent regarding double sale or the first respondent's argument regarding mora, as the application had already been dismissed on the basis of material disputes of fact.
1. An agent who acts with actual authority on behalf of a disclosed and identified principal is not personally liable for acts committed during the course of his employment and cannot be cited as a party to proceedings arising from such acts. The privity of contract is between the principal and the third party, and the agent is only accountable to the principal. 2. A party seeking specific performance of a contract must first prove that he has performed all his obligations under the contract or is ready, able and willing to perform his side of the bargain. 3. Where material disputes of fact exist that cannot be resolved on motion papers, and the applicant should have foreseen such disputes when launching the application, the appropriate remedy is dismissal of the application. 4. The burden of proof in civil proceedings rests on the party making a positive allegation.
The court noted that issues raised by the fifth respondent regarding double sale of the stand only arose after he was joined to the proceedings and were not raised by the original parties. The court also observed that the first respondent raised the issue of whether the applicants had put the respondent in mora in terms of clause 9.1 of the agreement, which required 30 days written demand before suing for specific performance, but this did not fall to be determined given the finding on material disputes of fact. The court expressed that where facts are in dispute, it has discretion either to dismiss the application or allow the matter to go to evidence, but the first course is appropriate where an applicant should have realized a serious dispute of fact was inevitable.
This case reinforces important principles of Zimbabwean law regarding: (1) the law of agency, particularly that an agent acting with actual authority on behalf of a disclosed and identified principal is not personally liable and is only accountable to the principal; (2) the requirements for specific performance, namely that the plaintiff must prove performance of his own obligations or readiness, ability and willingness to perform; (3) the procedural principle that where material disputes of fact exist that cannot be resolved on the papers, an application should be dismissed, particularly where the applicant should have foreseen such disputes when launching the application; and (4) the burden of proof in civil proceedings rests on the party making positive allegations.