David Gange Addenbrooke and Frances Ann Addenbrooke v Shasha Robert Gomez and The Registrar of Deeds (Bulawayo)

The plaintiffs (husband and wife) were trustees of the Magalena Trust, which owned two properties at Ascot Mews (shares 20 and 21). In 2017, they instructed estate agents to sell the trust. Two agreements of sale were drafted wherein the two properties were sold to the 1st defendant at USD$140,000.00 per unit (total USD$280,000.00). The terms required 1st defendant to pay for share 21 by 31 March 2018 and for share 20 by 31 December 2018. The 1st defendant paid the initial USD$140,000.00 for share 21 as agreed and received the title deed for that property, along with a renunciation and waiver of benefits by plaintiffs in the trust. However, 1st defendant failed to pay the balance of USD$140,000.00 by 31 December 2018. He eventually paid on 15 February 2019 into the plaintiffs' lawyers' trust account. The plaintiffs sought to declare the agreements null and void, claiming the parties were not ad idem - that plaintiffs sold a trust as an indivisible entity while 1st defendant believed he was buying two separate properties. Plaintiffs also sought eviction, rental payments, and return of trust documents.

• Whether the parties were ad idem (of the same mind) regarding the subject matter of the sale - whether it was a trust or two separate properties
• Whether the agreements of sale should be declared null and void ab initio for lack of consensus
• Whether the contract was validly cancelled by plaintiffs following 1st defendant's breach in failing to pay by 31 December 2018
• Whether plaintiffs properly invoked the cancellation clause (clause 14) in the agreement
• Whether 1st defendant was entitled to the title deed for share 20 after making late payment

1. Plaintiffs' claims dismissed with costs. 2. 1st defendant's claim in reconvention succeeds: Plaintiffs ordered to surrender to 1st defendant the original title deed for unit 20 (Deed of Transfer number 1940/97) upon return of funds rejected by plaintiffs' lawyers in February 2019.

1. Consensus ad idem must be determined objectively from the parties' conduct, correspondence, and actions throughout the transaction, not from subsequent assertions of different intentions. 2. Where a contract contains specific provisions for termination following breach (such as clause 14 requiring written notice specifying breach and allowing time to remedy), those procedures must be strictly followed. Failure to comply with agreed termination procedures means the contract continues to subsist and remains enforceable. 3. A party who has breached a contract may remedy that breach before valid cancellation occurs, and if no valid cancellation has taken place, the breaching party remains entitled to enforce their contractual rights upon remedying the breach.

The court noted that the plaintiffs' former lawyers appeared to have mishandled the matter by failing to properly invoke clause 14 of the agreement when 1st defendant failed to pay by the deadline. The court observed that the letter of 7 February 2019 was inconsistent with the plaintiffs' main claim that parties were never of the same mind, as it clearly treated the sale as divisible per property. The court also noted it had to conduct its own research regarding currency changes as neither party adequately addressed this issue in pleadings or submissions, finding that SI 33/19 only came into effect on 22 February 2019, after the payment date. The court commented that claims for punitive costs would only be appropriate where a party succeeds in their claims.

This case is significant in Zimbabwean contract law as it reinforces the principle that where parties have agreed upon specific procedures for terminating a contract, those provisions must be strictly followed. The judgment emphasizes that departure from agreed termination procedures will not result in effective termination. It also demonstrates the importance of objectively assessing consensus ad idem based on parties' conduct and correspondence over time, rather than subsequent assertions of misunderstanding. The case illustrates that a party in breach may still remedy that breach before valid cancellation occurs, and remains entitled to contractual rights if cancellation procedures are not properly followed.