John Sarachi v Sumaili Marizani and Municipality of Marondera

The plaintiff (John Sarachi) entered into a written agreement of sale with the first defendant (Sumaili Marizani) on or about 1 March 2014 for the purchase of Stand 2528 Winston Park, Marondera for US$25,000. The purchase price was payable as: US$15,000 deposit upon signing, US$5,000 by 31 March 2014, and US$5,000 by 30 April 2014. The plaintiff paid the deposit and first instalment. Before paying the final instalment, the plaintiff discovered the stand was 4,020 square metres, not 5,000 as represented. The parties met to discuss this discrepancy, and the first defendant advised the plaintiff to keep the US$5,000 pending clarification. Subsequently, the first defendant instituted proceedings at the Magistrates Court for cancellation based on non-payment. A consent order was granted requiring payment by 8 July 2014. The plaintiff paid US$5,000 to Franklin Cote & Associates (the first defendant's agents under power of attorney), receiving a receipt. The first defendant later wrote acknowledging receipt but claiming breach due to late payment and purporting to cancel the agreement. The first defendant denied authorizing the agents and refused to cede the property or give vacant possession.

• Whether the plaintiff had legally performed all his obligations in terms of the agreement of sale
• Whether the first defendant validly cancelled the agreement of sale
• Whether the purported cancellation complied with section 8(2) of the Contractual Penalties Act [Chapter 8:04]
• Whether the plaintiff was entitled to an order for specific performance
• Whether attorney-client costs were justified

1. The first defendant must sign all documents necessary to effect cession to the plaintiff of the rights, title and interest in Stand 2528 Winston Park, Marondera within seven days, failing which the Sheriff is authorized to sign such documents. 2. The first defendant shall give vacant possession within seven days after registration, failing which the Sheriff is authorized to eject the first defendant and all persons claiming through him. 3. The first defendant shall pay costs of suit on the attorney-client scale.

1. Cancellation of an instalment sale of land agreement must comply with section 8(2) of the Contractual Penalties Act [Chapter 8:04], which requires written notice giving the purchaser at least 30 days to remedy the breach. A notice period of less than 30 days renders the cancellation a nullity. 2. A party to a contract who has performed or is prepared to perform their obligations is entitled to an order for specific performance unless compelling reasons to the contrary exist. 3. The onus is on the party resisting specific performance to plead and prove, on a balance of probabilities, the circumstances justifying the court's exercise of discretion against granting the order. 4. Admissions made in a joint pre-trial conference minute are binding on the parties unless successfully challenged.

The court observed that specific performance is regarded as the primary remedy aimed at fulfillment of the contract. The court also noted that the discretion to refuse specific performance must be exercised judicially upon consideration of all relevant facts and circumstances, and may be withheld in cases of impossibility of performance, insolvency of the debtor, unjust results, or considerations of public policy. The court commented on the credibility of the first defendant, noting he was not being truthful when suggesting he had not received the US$5,000 despite his clear acknowledgment in his letter of 29 August 2014. The court also observed that the first defendant's proposal to refund the purchase price in instalments was not made seriously as no details of proposed instalments were provided.

This case demonstrates the strict requirements under Zimbabwean law for valid cancellation of instalment sale of land agreements under section 8(2) of the Contractual Penalties Act, requiring written notice with at least 30 days to remedy breach. It affirms the principle that specific performance is the primary remedy for breach of contract, available to a party who has performed their obligations unless compelling reasons exist. The case also illustrates the binding nature of admissions made in joint pre-trial conference minutes and the consequences of adopting inconsistent positions in litigation. It reinforces that the onus is on the party resisting specific performance to plead and prove grounds for refusing the order.