Jealous Marimudza v Maffack Properties (Private) Limited and Others

On 27 September 2005, the applicant (Marimudza) and the 1st respondent (Maffack Properties), represented by the 2nd respondent (Mafuta), concluded an agreement of sale for Stand 195 Monavale Township for $7 billion. Payment was to be made within 30 days to the seller's legal practitioners. The applicant was given occupation for the purpose of servicing the subdivided stands and was expressly told not to sell any stands. Despite this prohibition, the applicant advertised the stands for sale in the Sunday Mail on 2 October 2005, six days after signing the agreement. The 1st respondent's legal practitioners wrote on 7 October 2005 demanding that the applicant cease selling stands. The applicant continued selling stands and failed to pay the purchase price within the 30-day period. On 28 October 2005, the respondent's legal practitioners gave the applicant 14 days' notice to remedy the breach, which he failed to do. The agreement was cancelled on 14 November 2005.

• Whether the applicant was in breach of the agreement of sale by failing to pay the purchase price within the stipulated 30-day period
• Whether the applicant breached the agreement by selling stands without authority
• Whether the notice to remedy the breach was validly served on the applicant's domicilium citandi et executandi
• Whether the respondent was entitled to cancel the agreement following the applicant's failure to remedy the breach

The application was dismissed with costs on the ordinary scale.

Where a purchaser fails to pay the purchase price within the time stipulated in an agreement of sale and fails to remedy the breach after being given proper notice to do so, the seller is entitled to cancel the agreement. Notice served at an address designated by a party through their legal practitioners in writing constitutes valid service at the domicilium citandi et executandi for purposes of clause 9 of an agreement, where that clause permits parties to notify each other in writing of alternative addresses. A party who breaches an agreement by both failing to pay and by acting contrary to express prohibitions (such as selling property without authority) cannot obtain urgent relief to prevent cancellation of the agreement.

The court made observations about the applicant's credibility and honesty, noting that he was "being untruthful" regarding his claim to have offered payment on 21 October 2005, and that "it was just sheer dishonesty" on his part to contend that notice had not been validly served. The court also noted that the respondent's initial reluctance to give the applicant occupation was being vindicated by the applicant's subsequent conduct in selling the stands contrary to the express prohibition.

This case illustrates the application of fundamental principles of contract law in Zimbabwe, particularly regarding breach of agreement of sale, valid service of notices, and the consequences of failing to remedy breach within the stipulated time. It reinforces the principle that parties must comply with essential terms of agreements, including payment deadlines, and that breach entitles the innocent party to cancel. The case also demonstrates the court's willingness to reject dishonest contentions and addresses the proper interpretation of domicilium clauses in contracts.