In September 2009, the appellant (Divvyland Investments) and the respondent (David Chiweza) entered into a verbal agreement for the sale of property situated at 12 Le Roux Drive, Hillside, Harare. The parties disputed whether the entire property or only a portion was sold, and whether the purchase price was US$68,000 or US$75,000. The respondent paid a deposit of US$15,000 and made additional payments but failed to pay the full purchase price by the agreed date of 30 August 2010. The respondent claimed he could not pay the balance because the appellant refused to provide a written agreement of sale, which he needed to obtain a mortgage loan. In 2017, after the respondent complained about the appellant's subdivision of the property, the appellant served notice of breach, cancelled the agreement, and sought eviction, damages of US$58,000, and holding over damages of US$700 per month. The respondent counterclaimed for an interdict against subdivision and an order compelling the appellant to prepare a written agreement of sale.
The appeal was partially allowed with costs. The judgment of the High Court was set aside and substituted with an order granting the appellant's claim for eviction of the respondent from the property, but dismissing the claims for damages and holding over damages. The respondent's counterclaim was dismissed. There was no order as to costs in the High Court proceedings.
1. Courts cannot rewrite contracts for parties or impose new contractual terms not agreed upon by the parties. 2. A party who is in admitted and continued breach of a contract of sale cannot enforce that contract or obtain court orders based on it. 3. When a purchaser fails to pay the purchase price by the agreed date and remains in breach, the seller retains title and has the right to cancel the agreement and recover possession of the property. 4. Courts must determine matters based only on the issues, evidence, and relief placed before them by the parties and cannot grant relief not sought or properly motivated. 5. Admission of breach by a party is fatal to that party's claim to enforce the breached contract.
The Court observed that the High Court trial was "riddled with inadequacies of evidence" and was "a sheer waste of the court's time," though these observations related to findings that were ultimately set aside. The Court also noted the principle that there are no equities in a rei vindicatio action and that an owner as a general rule cannot be deprived of property against his will. The judgment referenced that questions regarding whether the entire property was sold, the actual purchase price, and the legality of the subdivision permit could only be answered after the respondent had remedied his breach - suggesting these issues were not properly before the court given the fundamental breach.
This case establishes important principles regarding the sanctity of contracts and the limits of judicial intervention in contractual disputes in Zimbabwean law. It confirms that courts cannot rewrite contracts for parties or impose terms not agreed upon, even when attempting to remedy perceived injustices. The judgment reinforces that a party in material breach of a contract cannot enforce that contract or seek court orders based on it, and that property owners who cancel agreements due to the other party's breach are entitled to recover possession of their property. The case also clarifies the distinction between a purchaser in possession under an agreement of sale (who is not liable for rent) and a tenant. The judgment serves as a warning to courts against going on a "frolic of their own" by granting relief not sought or motivated by the parties.