John Tranos Matukutire v Tinashe John Makwasha & Others

On 8 August 2018, the appellant entered into a written agreement of sale with the first and second respondents to sell them Stand 1235 Good Hope Township for USD45,000. The third respondent (appellant's wife) signed as witness with the words "Sold by Mrs Ratidzai Matukutire" beneath her signature. The first and second respondents claimed they paid USD25,000 on 7 August 2018 and USD20,000 on 8 August 2018 to the third respondent. Clause 2 of the written agreement stipulated that all payments must be made to the appellant "in hard currency cash." The first and second respondents instituted proceedings seeking specific performance when the appellant refused to transfer the property, claiming full payment had been made. The appellant denied receiving any payment and argued the first and second respondents breached the agreement by paying the third respondent instead of him as required by clause 2. The High Court granted the order of specific performance in favor of the first and second respondents.

• Whether a party who has not performed their obligations in accordance with the express terms of a written contract can claim specific performance
• Whether payment made to a third party, contrary to express contractual provisions requiring payment to the seller personally, constitutes valid performance
• Whether payments allegedly made before or on the day a written contract was signed can excuse non-compliance with express payment terms in the written agreement
• The application of the parole evidence rule and non-variation clauses in written contracts
• Whether performance must be in forma specifica (exactly as specified) or per aequipollens (in an equivalent manner)

The appeal was allowed with costs. The judgment of the High Court was set aside in its entirety and substituted with an order dismissing the application with costs.

A party claiming specific performance must demonstrate that it has performed its own contractual obligations in accordance with the express terms of the contract. Where a written contract contains a clear and unequivocal provision specifying the mode, manner and recipient of payment (such as payment to be made to a named person in hard currency cash), the party obliged to make payment must perform in forma specifica (exactly as specified). Payment made in contravention of such express terms does not constitute valid performance. Furthermore, where a contract contains a non-variation clause and an entire agreement clause, the parties cannot rely on alleged prior oral agreements or representations to vary or contradict the express written terms. Courts may not excuse parties from the consequences of contracts they have freely and voluntarily entered into or rewrite contractual terms, even if they appear onerous.

The Court observed that where parties to a contract take vastly different positions on material facts, a court hearing the matter on affidavit cannot resolve those disputes without hearing viva voce evidence. The Court also noted (by way of concession from counsel) that costs on an ordinary scale rather than attorney and client scale would be appropriate in the circumstances. The Court referenced the payment of conveyancing fees to the appellant's legal practitioners but found this could not override the failure to perform in accordance with clause 2. The judgment also contains observations about the confusion created by the execution clause showing the property was "sold by" the third respondent when she later claimed only to be a witness, though this was not determinative given the clear terms of clause 2.

This case is significant in South African and Zimbabwean contract law as it reinforces fundamental principles of contractual performance and specific performance. It establishes that: (1) parties seeking specific performance must strictly comply with express contractual terms, particularly regarding mode and manner of payment; (2) courts cannot excuse parties from the consequences of contracts they have freely entered into, even if the terms appear onerous; (3) the parole evidence rule and non-variation clauses must be strictly enforced to preserve the integrity of written contracts; (4) performance must generally be in forma specifica where the contract clearly stipulates a particular mode of performance; and (5) courts should not rewrite contracts or read implied terms that contradict express provisions. The case serves as an important reminder of the caveat subscriptor rule and the binding nature of written contractual terms in commercial transactions involving immovable property.