Eunice Dzangare and Wish Properties (Pvt) Ltd v Champion Constructions (Pvt) Ltd and Elizabeth Chidavaenzi and Registrar of Deeds

The first applicant, Eunice Dzangare, purchased Stand Number 1006, Remainder of Hilton Subdivision of Waterfalls measuring 1987 square metres held under deed of transfer No. 7666/2001, as undeveloped land through Wish Properties (Pvt) Ltd (the second applicant), represented by its then director Biriam Wabatagore (now deceased). Wish Properties had previously purchased the property from Champion Constructions (Pvt) Ltd under a written agreement of sale. Champion held a parent deed to property being subdivided into various stands including the stand in question. Upon payment of the purchase price in 2003, Dzangare was given vacant possession by Wish and remained in undisturbed possession since then, developing the property by constructing a dwelling house. The problem arose because the property was not transferred. The original agreement of sale between Wish and Champion could not be found, having been misplaced during the takeover of the late Mr Wabatagore's law firm. Mrs Audrey Wabatagore (the widow, now director of Wish) relied on various correspondence and annexures to prove the existence of the agreement. Champion, represented by its director Elizabeth Chidavaenzi (second respondent), denied the sale and opposed transfer on the basis that no agreement could be produced. Wish ceded its rights to transfer to Dzangare.

• Whether secondary evidence could be admitted to prove the existence of a contract where the original agreement of sale was lost or destroyed
• Whether the applicants had proven the existence of an agreement of sale between Wish Properties and Champion Constructions on a balance of probabilities
• Whether the cession by Wish of personal rights to Dzangare was valid and competent
• Whether the court could order transfer directly to a third party under section 11(1)(v) of the Deeds Registries Act
• Whether the doctrine of rei vindicatio protected Champion from being deprived of its property without its consent

1. The application was granted. 2. The first respondent (Champion Constructions) was ordered to sign transfer papers and take all necessary steps to pass transfer of Stand 1006 into the first applicant's name within 7 days of service of the court order, failing which the Sheriff for Zimbabwe or his lawful Deputy was authorized to sign all transfer papers on the first respondent's behalf. 3. The second respondent (Elizabeth Chidavaenzi) was ordered to pay costs of the application on a legal practitioner and client scale.

Where the original contract has been lost or destroyed and a satisfactory explanation is provided for its absence, secondary evidence (including correspondence, letters, and other documentary evidence) may be admitted to prove the existence and terms of the contract. On a balance of probabilities in civil proceedings, if secondary evidence convincingly demonstrates that an agreement of sale existed and was concluded, and the purchaser has been in undisturbed possession of the property, the court will order transfer notwithstanding bare denials by the vendor unsupported by credible evidence. The court will not allow a party to take advantage of a lost agreement where the totality of evidence points to the existence and conclusion of a sale.

The court made observations about the hyperinflationary environment in Zimbabwe at the relevant time (around 2003-2004), noting it was not unusual for parties to seek clarification on top-ups of payments particularly where payment had been in instalments and transfers were outstanding. The court also observed that cases of developers failing to pass transfer have become an increasing headache before the courts. The court used African proverbs metaphorically, stating that 'the best way to eat an elephant in your path is to cut him into little pieces' and 'one sees all sorts of knives the day an elephant dies' to contextualize the complexity of the dispute and the various claims to the property.

This case is significant in Zimbabwean property and evidence law for establishing that: (1) courts will admit secondary evidence to prove the existence of a contract where the original has been lost or destroyed, provided a satisfactory explanation is given; (2) courts will look at the totality of circumstantial evidence and correspondence to determine on a balance of probabilities whether an agreement existed; (3) courts will protect purchasers who have been in undisturbed possession and developed property from developers who seek to take advantage of missing documentation; (4) the court's primary concern where evidence supports a concluded sale is to ensure justice between the parties rather than allow technical defences based on missing documents; and (5) bare denials unsupported by evidence will not defeat a claim supported by corroborating secondary evidence. The case also addresses the persistent problem of developers failing to pass transfer, which the court noted has become an increasing concern before the courts.