Hillary Murima and Francisca Boiketho Rugare Murima v Jane Linda Georgias N.O and Others

The applicants purchased immovable property (Remaining Extent of Lot 52 Meyrick Park of Mabelreign measuring 8035 square metres) from the first respondent (Executrix Dative of the Estate Late Aguy Clement Georgias) on 2 February 2017 for US$150,000.00. The purchase price was deposited into the trust account of Messrs Gill Godlonton and Gerrans Legal Practitioners. The Master of the High Court consented to the sale on 15 June 2017. In August 2018, a purported beneficiary (Anthony Georgias) challenged the sale before the High Court. On 26 October 2017, the first applicant wrote to the lawyers requesting withdrawal of the purchase price to the applicants' bank account, undertaking to return the funds once the estate dispute was resolved. The Master later resolved the dispute and directed that the sale could proceed. The applicants purportedly redeposited the US$150,000.00 back into the trust account. The first respondent then indicated she was no longer proceeding with the sale, prompting this application for specific performance.

• Whether the temporary withdrawal of the purchase price from the lawyers' trust account by the applicants constituted a material breach of the sale agreement
• Whether the applicants complied with the terms and conditions of the sale agreement
• Whether the applicants were entitled to an order for specific performance
• Whether the sale agreement was repudiated, lapsed or fell away due to the withdrawal of funds
• Whether specific performance is an available remedy to a party who has breached the terms of the agreement

The applicants' application was dismissed with costs.

Specific performance, being an equitable remedy, is not available to a party which has breached the terms of an agreement. A party seeking specific performance must prove that they have complied with all the terms and conditions of the contract. Where parties have agreed to specific terms regarding payment (such as depositing purchase price into a trust account), withdrawal of those funds constitutes a material breach of the agreement, even if the funds are later redeposited. The party seeking specific performance bears the onus of proving compliance with contractual terms, and failure to discharge this onus will result in the remedy being denied.

The court observed that specific performance is a rare or unusual remedy which should be granted only where money compensation is not adequate. The court also noted that the applicants had already mitigated their loss by withdrawing the purchase money and investing it elsewhere, suggesting they had not suffered damages warranting the granting of specific performance. The court distinguished cases dealing with mora ex persona (where time for performance is not agreed upon) from situations like the present case where parties had agreed on specific time limits for performance.

This case clarifies important principles regarding specific performance in Zimbabwean contract law, particularly in the context of sale of land agreements. It establishes that: (1) specific performance is an equitable remedy that requires the party seeking it to have clean hands and to have fulfilled all their own contractual obligations; (2) withdrawal of purchase money from a trust account as required by a sale agreement constitutes a material breach even if the funds are later redeposited; (3) parties who have mitigated their losses by withdrawing and investing purchase money elsewhere may not be entitled to specific performance; and (4) when a breach of contract is alleged, the party seeking specific performance bears the onus of proving compliance with all terms of the agreement. The case reinforces the strict application of contractual terms in property transactions and the importance of maintaining funds in trust accounts as agreed.