Farai Madondo v Trustees for the Time Being for the Lashley Trust and Sheriff of the High Court

The applicant and the 1st respondent entered into an agreement of sale on 2 February 2021 for the property known as Stand 22 Broadmead Estate Township (22 Rubidge Close, Hoggart Hill, Harare) for a purchase price of US$266,000.00, which the applicant fully paid. The 1st respondent subsequently offered the same property for sale through an estate agent (Luxury Real Estate) in August 2021. The applicant discovered this on 17-18 August 2021 and filed an urgent application seeking to compel transfer of the property and interdict the sale to third parties. The 1st respondent denied the existence of a valid sale agreement, claiming instead that the parties had a loan agreement with the sale agreement serving as collateral security (in separate proceedings HC 770/21), but in this application admitted an agreement of sale existed. The 1st respondent claimed it had exercised a buy-back right under clause 6 of the agreement and alleged it had refunded $44,000.00 to the applicant, but failed to produce proof of payment or written notice of intention to buy back as required by the agreement.

• Whether the application met the requirements of urgency
• Whether there were material disputes of fact that could not be resolved without oral evidence
• Whether a valid and binding agreement of sale existed between the parties
• Whether the 1st respondent validly exercised the buy-back clause in the agreement of sale
• Whether the applicant established the requirements for an interdict
• Whether costs on an attorney and client scale were justified

1. The agreement of sale signed on 2 February 2021 was declared valid and binding in respect of the property. 2(a). The 1st respondent was ordered to take all steps and sign relevant documents to facilitate transfer of the property to the applicant within 14 days. 2(b). Failing compliance, the Sheriff was authorized to sign on behalf of the 1st respondent to effect transfer. 3. The 1st respondent was ordered to pay costs on an attorney and client scale.

1. An agreement of sale is valid and enforceable where the merx (subject matter) and purchase price are agreed and the purchaser has fully complied with payment obligations. 2. A buy-back clause in an agreement of sale must be exercised in strict compliance with its terms, including any requirements for written notice and timeframes specified. Failure to comply with mandatory requirements renders the purported exercise invalid. 3. A party who makes contradictory averments under oath in different proceedings undermines their credibility and cannot rely on inconsistent positions to avoid contractual obligations. 4. For urgency to be established, two factors are crucial: (a) the need to act promptly when harm is apprehended (time); and (b) the consequences of failing to act promptly or of the court declining to hear the matter urgently. 5. An alleged dispute of fact must be genuine and material; bare allegations unsupported by evidence, particularly where documentary proof could readily be provided but is not, do not create disputes requiring oral evidence. 6. The requirements for an interdict are: (i) a clear right; (ii) injury actually committed or reasonably apprehended; and (iii) absence of alternative remedy.

The court made observations about the 1st respondent's lack of candor with the court in maintaining different positions in HC 770/21 and the present application. CHINAMORA J noted it was "curious" that the 1st respondent did not maintain its narrative of a loan agreement as opposed to a sale agreement. The court also commented on the 1st respondent's failure to file a counter-application regarding the alleged balance on the purchase price, suggesting this would have been the appropriate course if there was a genuine dispute about payment. The judge observed that "there cannot be any confusion between a loan agreement and an agreement of sale," highlighting the fundamental incompatibility of the 1st respondent's positions. The court expressed that punitive costs were warranted to show the court's displeasure with the 1st respondent's conduct in taking contradictory positions and making futile arguments about the buy-back right.

This case demonstrates the Zimbabwean High Court's approach to enforcing agreements of sale and specific performance in property transactions. It illustrates the principles governing urgency in applications, particularly where property may be sold to third parties causing irreparable harm. The case reinforces that parties cannot take contradictory positions under oath in different proceedings without undermining their credibility, citing DD Transport (Pvt) Ltd v Abbot and Leader Tread (Pvt) Ltd v Smith. It confirms that buy-back clauses must be exercised strictly in accordance with their terms, including mandatory written notice requirements. The judgment also demonstrates the court's willingness to award punitive costs where a party has acted in bad faith by denying the existence of agreements or taking inconsistent positions in litigation. The case is significant for establishing that bare allegations without supporting evidence will not create genuine disputes of fact requiring oral evidence.