Hawkflight Enterprises (Pvt) Ltd v Crispen Gudoshava

Hawkflight Enterprises (plaintiff) was the owner of stand number 492 Emthunzini Township, Bulawayo. On 5 September 2011, plaintiff entered into an agreement of sale with Crispen Gudoshava (defendant) for the property at a purchase price of USD$20,880.00, with a deposit of USD$1,400.00 and monthly instalments of USD$162.20. Defendant paid approximately USD$13,000.00 but fell into arrears. On 24 April 2019, defendant delivered a handwritten letter (Exhibit A2) withdrawing from the agreement, citing his inability to pay in United States dollars as he earned in RTGS dollars. Defendant engaged lawyers (Pundu & Company) who negotiated a refund of RTGS$8,866.00, which was paid to the lawyers' trust account on 30 August 2019. Defendant subsequently attempted to revoke the cancellation and claimed he had paid the full purchase price, but plaintiff refused to reinstate the agreement and sought to evict defendant from the property.

• Whether the defendant cancelled the agreement of sale and demanded a refund as provided for in the agreement
• Whether the plaintiff misrepresented that it would refund the defendant in United States Dollars
• Whether the plaintiff has a right to evict the defendant based on rei vindicatio
• Whether the defendant could unilaterally revoke his cancellation of the agreement after it had been accepted
• Whether the defendant has a right of retention to remain in possession of the property

1. Defendant and all those claiming through him are evicted from stand number 492 Emthunzini Township, Bulawayo. 2. Defendant to pay the costs of suit.

The binding legal principles established are: (1) Rei vindicatio is a remedy available to an owner to reclaim property from any person in possession without the owner's consent, requiring proof that the claimant is the owner, the defendant is in possession, and the property is identifiable. (2) Cancellation of a contract is a unilateral act that takes effect upon communication to the other party and requires no concurrence from the receiving party. (3) Once a contract is cancelled and accepted, it becomes a fait accompli and cannot be unilaterally revoked or reinstated by the cancelling party without the agreement of both parties. (4) The effect of cancellation is to terminate the primary obligations between the parties (those related to performances due under the contract). (5) A defendant resisting rei vindicatio bears the burden of proving any right of retention or other legal basis to remain in possession of the property. (6) An owner may not be deprived of property against his or her will and is entitled to recover it from any person unless that person has an enforceable right such as a right of retention or contractual right.

The court made several non-binding observations: (1) When a litigant alleges incompetence or neglect by a former legal representative, the lawyer must be afforded an opportunity to respond and the court must assess who is telling the truth - the court will not make serious findings against a legal practitioner without hearing their version. (2) The failure to call a material witness (Mrs. Drau) was telling and significant in assessing the defendant's case. (3) A party cannot plead one case and then argue a different case at trial - the issue of duress was not pleaded and could not be argued. (4) The fact that a refund amount was re-transferred to the plaintiff after being paid to the lawyers' trust account was inconsequential to the legal position. (5) The court noted that plaintiff's witnesses, as mere office functionaries testifying about their office functions, were credible and reliable, while defendant's evidence had "a ring of artificiality and untruthfulness."

This case is significant in Zimbabwean property and contract law as it clarifies important principles regarding: (1) the remedy of rei vindicatio available to owners to reclaim property from unauthorized possessors; (2) the unilateral nature of contractual cancellation - once communicated and accepted, cancellation takes effect immediately and cannot be unilaterally revoked by the cancelling party; (3) the effect of cancellation in terminating primary obligations under a contract; (4) the requirements for establishing rei vindicatio (proof of ownership, possession by defendant, and identifiability of property); and (5) the burden on a defendant to prove any right of retention against an owner's claim. The case also demonstrates evidentiary principles regarding the credibility of witnesses and the importance of calling material witnesses (the failure to call the lawyer Mrs. Drau was significant). It illustrates that a party cannot plead one case and argue another, and that issues such as duress must be specifically pleaded if they are to be raised.