Dennis Taurayi Machiwana and Regedzai Machiwana v Westhill Services (Pvt) Ltd and Registrar of Deeds

In February 2006, the plaintiffs (husband and wife) offered to purchase property from the first defendant, specifically "The Remaining Extent of Subdivision A of Lot 25 of Hatfield Estate" measuring 8,190 square metres. After viewing the property and agreeing on the price, the parties signed an agreement of sale on 11 March 2006. The plaintiffs performed their obligations, paid the purchase price, and took occupation of the property in 2006, remaining in occupation thereafter. Transfer was effected by the first defendant's legal practitioners, Scanlen & Holderness, and a Title Deed was issued under Deed of Transfer No. 2341/2006. However, in 2008, the parties discovered that the property had been erroneously described in both the agreement of sale and the Title Deed as "Lot 5 of Lot 24 of Hatfield Estate" measuring 4,047 square metres instead of the correct property. The first defendant initially cooperated in rectifying the error and instructed its legal practitioners to prepare rectification papers. The plaintiffs signed the rectification documents on 19 March 2014, but the first defendant refused to sign from July 2014 onwards and demanded the plaintiffs vacate the property in November 2014. The correct property remained registered in the first defendant's name under Deed of Transfer No. 8695/1995.

• Whether there was a common mistake by the parties in respect of the description of the property in the agreement of sale signed on 11 March 2006
• Whether the agreement of sale can be rectified to reflect the parties' true intention
• If there was no common mistake, whether the first defendant is entitled to evict the plaintiffs from the property

The court ordered: (1) Rectification of the agreement of sale dated 11 March 2006 to substitute the erroneous property description "Lot 5 of Lot 24 of Hatfield Estate" with "The Remaining Extent of Subdivision A of Lot 25 of Hatfield" held under Deed of Transfer No. 8695/1995; (2) The first defendant to do all acts and sign all documents necessary for transfer to the plaintiffs, failing which the Sheriff of Zimbabwe is authorized to do so on behalf of the first defendant; (3) The second defendant (Registrar of Deeds) to cancel Deed of Transfer No. 2341/2006 (the erroneous transfer); (4) The second defendant to register the transfer and cancellation; (5) The application for eviction of the plaintiffs from Subdivision A of Lot 25 of Hatfield is dismissed; and (6) The first defendant to pay costs of suit on the Attorney and Client scale.

Where parties to an agreement of sale have a common continuing intention regarding the subject matter of the contract (in this case, the specific property to be sold), and by mistake the written agreement does not reflect that common intention, the court may order rectification of the agreement to give effect to the parties' true subjective intention, provided the party seeking rectification proves on a balance of probabilities that: (1) the parties had a common continuing intention in respect of the particular matter; (2) there was an outward expression of accord; (3) the intention continued at the time of execution; and (4) by mistake the instrument did not reflect that common intention. A common essential mistake, where both parties make the same mistake which is causal for both, does not vitiate the contract but warrants rectification.

The court made observations about the credibility of witnesses, noting that Mr. Chindanya (the first defendant's witness) was not credible and appeared to be taking advantage of the deaths of the original directors (Jess Dyer and Anthony Derek Lamb) to dispossess the plaintiffs. The court commented that it was "highly unlikely" that the first defendant was unaware of the error given the documentary evidence of extensive correspondence and rectification efforts. The court also observed that it was implausible that the Machiwanas would have been allowed to occupy the property from 2006 to the date of trial without any action being taken if they were merely temporary occupants meant to renovate a different property. The court noted with approval that Byron John Symeonoglou, as a senior counsel and officer of the court, was credible and unbiased in his testimony.

This case is significant in Zimbabwean contract and property law as it demonstrates the application of the doctrine of rectification for common essential mistakes. It establishes that where both parties to a contract make the same mistake regarding a material term (in this case, property description), and there is clear evidence of the parties' true subjective intention, courts will rectify the contract rather than void it. The case also illustrates the importance of good faith in contractual dealings and the court's willingness to prevent one party from taking opportunistic advantage of a mutual mistake, particularly where that party initially acknowledged the error and cooperated in rectification efforts. The case reinforces that the standard of proof for rectification is the ordinary civil standard of balance of probabilities, and that credible expert testimony (particularly from conveyancers as officers of the court) carries significant weight.