Edward Ben Mhambi v Noel Dube and Moreji Tshuma

The applicant was a member of Mhlahlandlela Development Group which operated under Mhlahlandlela Welfare Society Trust to build and develop houses in Filabusi. He acquired a stand and constructed two structures on it. In 1977, facing financial difficulties, the applicant decided to sell the stand. Molly Mpofu, the scheme coordinator, introduced the 2nd respondent to the applicant, resulting in an oral agreement. The applicant claimed the purchase price was $25,000 and that he spent $13,391.60 on improvements. After the respondents occupied the stand for two years, a dispute arose resulting in a peace order binding both parties. The 2nd respondent disputed the purchase price, claiming the agreement appeared to be with Molly Mpofu, that only huts (not houses) were built, that no payment was required as it was state land, and that compensation of only $2,000 was paid for improvements.

• Whether the court can determine the matter on the papers in motion proceedings where there are material disputes of fact
• Whether there was a valid oral agreement of sale between the parties and on what terms
• Whether the applicant is entitled to an eviction order
• Whether the matter should be referred to trial for viva voce evidence

The matter was referred to trial. Parties were permitted to file their pleadings if they wished. Costs were ordered to be costs in the cause.

In motion proceedings, where there are material disputes of fact that are bona fide and not merely illusory, the matter must be referred to trial for determination through viva voce evidence. The applicant bears a heavy onus to demonstrate that disputes can be resolved on papers without injustice. Material disputes regarding the terms and conditions of oral agreements, including purchase price, parties to the agreement, and payment obligations, cannot be properly resolved solely on contradictory affidavits and require the advantages of oral evidence for justice to be done between the parties.

The court endorsed the principle from Zimbabwe Bonded Fiberglass (Pvt) Ltd v Peech that courts should take a "robust and common sense approach and not an over fastidious one" when dealing with motion proceedings, provided there is no real possibility of doing an injustice to either party. The court also noted that it is not sufficient for a respondent to resort to bare denials of an applicant's material averments; the respondent's affidavits must disclose that there are material issues with a bona fide dispute of fact capable of being properly decided only after viva voce evidence. The court observed that whether the structures built were houses or huts was irrelevant for purposes of the application, though this became material in the context of the disputes raised.

This judgment is significant in Zimbabwean civil procedure as it applies and reinforces the principles governing motion proceedings where disputes of fact arise. It demonstrates the court's approach of adopting South African jurisprudence on when matters should be referred to trial rather than being decided on affidavits alone. The case illustrates the heavy onus on applicants in motion proceedings and the requirement that material disputes of fact, particularly regarding the terms of oral agreements, should be resolved through viva voce evidence rather than on papers. It confirms that courts will not adopt an overly fastidious approach but must be satisfied there is no real possibility of injustice before resolving disputes on affidavits.