Getrude Sihle Sibanda v Linda Katsande and Others

In October 2007, the plaintiff and the first and second defendants entered into a written agreement of sale for immovable property known as Stand No. 4306 Fountainbleau Estate measuring 185 square metres held under deed of grant number 00117/05. The purchase price was Z$12 billion (actually paid in US dollars). The plaintiff paid the full purchase price to the defendants. The second defendant (first defendant's ex-husband) consented to judgment and gave evidence supporting the plaintiff, confirming receipt of the purchase price and that both defendants signed acknowledgments of receipt. Despite receiving full payment, the first defendant refused to transfer the property to the plaintiff. The first defendant denied entering into the agreement in October 2007, claimed it was in December 2007 for $20 billion with an agreement to declare only $12 billion to avoid taxes, alleged illegality and fraud, and claimed she received no money and cancelled the agreement. However, the first defendant admitted signing Annexure A (the agreement) but chose not to testify at trial, closing her case without giving evidence.

• Whether the plaintiff and first and second defendants entered into a valid agreement of sale in respect of Stand No. 4306 Fountainbleau Estate
• Whether the plaintiff fully discharged all her obligations in terms of the agreement of sale
• Whether the first defendant was paid the full consideration due to her
• Whether the plaintiff is entitled to specific performance requiring the defendants to sign transfer papers
• What inference should be drawn from the first defendant's failure to testify

The court ordered: (a) the 1st and 2nd defendants to sign all transfer papers to facilitate transfer of Stand No. 4306 Fountainbleau Estate into the plaintiff's name; (b) in the event of non-compliance, the Deputy Sheriff is authorized to sign the necessary transfer papers with the 3rd defendant (Registrar of Deeds) directed to accept same and transfer the immovable property from the defendants to the plaintiff; (c) the 1st and 2nd defendants to pay costs of suit on an attorney and client scale.

Where a party admits signing an agreement of sale, receives the full purchase price with written acknowledgment, and then refuses to perform by transferring the property, that party bears the onus to prove any defence of illegality, fraud, alternative agreements, or cancellation raised in pleadings. When such party fails to testify despite being present and available at trial, an adverse inference must be drawn that the party fears the evidence would expose facts unfavourable to their case or damage their defence. The failure to testify leaves the plaintiff's prima facie case unchallenged, and specific performance will be ordered when all essential elements of a valid contract of sale are proven and no legal obstacle to transfer exists.

The court noted several unexplained contradictions arising from the first defendant's failure to testify, including: which of the alleged multiple agreements was cancelled; when cancellation occurred relative to receipt of payment; why she would sign an acknowledgment of receipt if the agreement was cancelled and she received no funds; what the alleged illegality consisted of; and who the third parties were who allegedly defrauded her. The court observed that the first defendant's choice not to testify appeared designed to avoid answering these questions and addressing contradictions between her pleadings and positions taken in other proceedings including criminal trial CRB 88/08.

This case reinforces important principles in Zimbabwean contract law regarding: (1) the enforcement of agreements of sale of immovable property through specific performance; (2) the evidential burden on parties who raise defences of illegality, fraud, or cancellation; (3) the adverse inferences that courts will draw when parties fail to testify without good reason, particularly when they are present, available, and make serious allegations in their pleadings; (4) the application of the Tshishonga and Ntsomi principles regarding failure to call witnesses; and (5) the court's willingness to authorize alternative means of execution (Deputy Sheriff signing) when defendants refuse to comply with court orders. The case demonstrates that parties cannot avoid contractual obligations through bare allegations in pleadings without supporting evidence.