Craftcall Investments (Pvt) Ltd v Diana Mutsa Mapondera and Lawrence Masanga

The applicant, Craftcall Investments (Pvt) Ltd, sought transfer of stand 81 Gletwyn Township Harare registered in the name of the first respondent, Diana Chipendo (now Mapondera). The first and second respondents were divorced by court order in 2016. The applicant claimed to have purchased the property for USD 140,000.00 pursuant to a written agreement dated 26 April 2013, allegedly signed on behalf of the first respondent by Omasi Makaza acting under a power of attorney dated 29 May 2013. The applicant alleged it had paid the full purchase price and sought specific performance. The first respondent denied signing the agreement, denied granting any power of attorney to Makaza, and denied receiving the purchase price. The power of attorney was dated after the sale agreement, raising questions about authority. The applicant produced proof of various payments totaling the purchase price made to the applicant's lawyers, J Mambara & Partners, and directly to the second respondent's bank account. Email communications showed that the first respondent was aware of the sale and in September 2014 had requested confirmation of payments and demanded the balance be paid or she would withdraw the sale. The second respondent filed an affidavit stating he did not oppose but supporting the applicant, which was expunged from the record.

• Whether a valid and enforceable sale agreement existed between the applicant and the first respondent
• Whether Omasi Makaza had authority to sign the sale agreement on behalf of the first respondent
• Whether the power of attorney dated 29 May 2013 was valid and authentic
• Whether the first respondent ratified the sale agreement through her subsequent conduct
• Whether the first respondent was estopped from denying the validity of the sale
• Whether the agreement violated section 39 of the Regional Town and Country Planning Act [Chapter 29:12]
• Whether application proceedings were appropriate given the disputed facts
• Whether the applicant established its entitlement to an order for specific performance
• The procedural propriety of a respondent filing a supporting affidavit rather than opposing or consenting

The application was dismissed with costs.

A sale agreement that is not signed by the principal seller and is purportedly signed by an agent under a forged or invalid power of attorney is null and void. An applicant's case in application proceedings stands or falls on the founding affidavit - defenses such as ratification or estoppel must be properly pleaded in the founding papers and cannot merely be raised in argument. A respondent in court application proceedings must either oppose the application by filing a notice of opposition and opposing papers, or consent to the relief sought, but cannot file a supporting affidavit in favor of the applicant. Where material facts are genuinely disputed and require explanation and oral evidence, application proceedings are not the appropriate procedure. For an order of specific performance to be granted, the applicant must establish on a balance of probabilities that a valid and enforceable contract exists and that the applicant has performed or is ready and willing to perform its obligations under the contract.

The court made important observations about the conduct of legal practitioners in cases of alleged judicial error. Chitapi J noted that when a judgment appears to have been issued without a hearing, legal practitioners should first seek clarification through the Registrar and engage Rule 29 rather than immediately writing letters accusing the judicial officer of impropriety, bias, or misconduct. The court stated that while judicial officers are not beyond reproach, legal practitioners as officers of the court should not rush to impute improper motives without first seeking an explanation. The court also commented that the legal practitioner S. Muyemeki who attested to the power of attorney when the first respondent was not present should be investigated by the Law Society for possible misconduct, and directed the Registrar to deliver a copy of the judgment to the Law Society Secretary. The court further observed that subsequent subdivisions of property do not affect the validity of a prior sale of the whole property, and that the first respondent's rights are not affected by subdivisions she did not apply for.

This case is significant for several principles in Zimbabwean law: (1) It reinforces the proper procedure for addressing judicial errors through Rule 29 rather than immediately alleging judicial misconduct; (2) It clarifies that respondents in court applications must either oppose or consent, but cannot file supporting affidavits for the applicant; (3) It demonstrates the strict requirements for valid powers of attorney and the consequences of forgery; (4) It illustrates that while ratification and estoppel may be available defenses, they must be properly pleaded in the founding affidavit as an applicant's case stands or falls on those papers; (5) It confirms that application proceedings are inappropriate where material facts are in dispute requiring oral evidence and explanation; (6) It emphasizes the importance of proper pleading and the limits of what can be argued that was not pleaded in the founding papers; and (7) It demonstrates judicial oversight of legal practitioners who attest to documents as notaries public when the signatory was not present.