Enerst Gomba and Desmoins Investment (Private) Limited v George Parking and Bulawayo City Council

The first respondent (George Parking) was the owner of Stand Number 7 and 9 Woodstock, Thorngrove, Bulawayo. In 2006, the first respondent and first appellant (Enerst Gomba) entered into a verbal lease agreement whereby the appellant leased the respondent's premises. The appellant, an entrepreneur in milling and manufacturing of grinding mills through his company (second appellant), claimed that the respondent subsequently sold the property to him for 10 trillion Zimbabwean dollars payable in monthly instalments of $500. The appellant alleged he had paid the bulk of the purchase price leaving a balance of US$8,500. The respondent disputed the sale, claiming the appellant was merely a tenant. A handwritten document dated 27 September 2007 (annexure A) was signed by the respondent stating the appellant was the owner of the premises. The respondent challenged the authenticity of this document on the basis of duress. The appellant produced receipts marked as "Rentals" and admitted in his founding affidavit that he knew he was entering into a bogus contract to help the respondent evade threats from war veterans seeking to take over idle properties.

• Whether there was a valid agreement of sale entered into between the appellant and the respondent
• When such agreement was entered into and what were the terms thereof
• What were the circumstances surrounding the writing and signing of annexure A
• Whether the appellant discharged the onus of proving the existence of an oral instalment sale of land in accordance with section 7 of the Contractual Penalties Act [Chapter 8:04]
• Whether annexure A constituted a contractual document capable of transmitting contractual rights and obligations

The appeal was dismissed with costs at the attorney-client scale (punitive costs). The judgment of the High Court sitting at Bulawayo handed down on 22 June 2017 dismissing the appellant's claim for transfer of the property was upheld.

1. In terms of section 7 of the Contractual Penalties Act [Chapter 8:04], every instalment sale of land must be reduced to writing. Where such a contract or any term thereof has not been reduced to writing, the onus of proving the existence of that contract, term or condition rests on the person alleging its existence. 2. A document signed by only one party to an alleged contract, which contains no contractual terms or purchase price and gives no insight as to how property was transferred, does not constitute a contractual document capable of transmitting contractual rights and obligations. 3. A party alleging the existence of an oral instalment sale of land must prove such existence on a balance of probabilities with credible and consistent evidence. 4. Agreements entered into for illegal purposes (such as sham agreements to defraud third parties) are unenforceable. 5. A party cannot unilaterally novate contract terms and seek to bind the other party to terms alien to the original alleged agreement.

The Court observed that unlike in South Africa, in Zimbabwe a sale of land need not be in writing (except for instalment sales). The Court made punitive observations about the appellant's conduct, noting that he had taken "a shot in the dark" by lodging an appeal with full knowledge that he had "absolutely no prospects of success on appeal" and had put the respondent to "unwarranted wasted costs". The Court also commented critically on the appellant's "pathetic performance under cross-examination" and described his conduct under litigation as "devious and dishonest".

This case clarifies the requirements for proving oral instalment sales of land in Zimbabwean law under section 7 of the Contractual Penalties Act. It confirms that while a sale of land need not be in writing in Zimbabwe (unlike South Africa), an instalment sale of land must be reduced to writing, and where it is not, the person alleging its existence bears the onus of proof. The case demonstrates the court's approach to assessing credibility where parties present contradictory evidence, and reinforces that parties cannot enforce sham or bogus agreements entered into for illegal purposes (such as evading lawful claims by war veterans). It also illustrates when punitive costs at attorney-client scale will be awarded where a party pursues litigation with no reasonable prospects of success.