Kingstone Ringisai Makarichi v Cyprian Alias Chaipa Tsungo and The Registrar of Deeds

The plaintiff claimed he purchased a farm measuring 93.2567 hectares called Zviyambe 96 in Wedza district from the first defendant. The plaintiff learned through his sister Jennifer that the first defendant was selling the farm. Negotiations took place at the first defendant's farm in the presence of his two wives and son Daniel Chipunza. The purchase price was initially ZW$200 million but was negotiated down to ZW$160 million, payable as ZW$60 million deposit and ZW$10 million monthly instalments. Due to inflation, the price was later increased to ZW$210 million. The plaintiff took possession of the farm in late 2004 and paid the final instalment on 12 July 2005. Daniel Chipunza signed receipts for the money on behalf of the first defendant and handed the money to the first defendant in the plaintiff's presence. The first defendant refused to sign formal transfer documents. The plaintiff has had undisturbed possession of the farm since 2004 and has been paying taxes and rates. The first defendant denied selling the farm and claimed he only authorized his son Daniel to find a buyer and that no agreement was concluded.

• Whether an agreement of sale was concluded between the plaintiff and the first defendant for the farm
• Whether the plaintiff paid the full purchase price for the farm
• Whether the essential elements of a valid sale agreement were satisfied (intention to sell and buy, clear identification of subject matter, agreement on price)
• Whether Daniel Chipunza had authority to act on behalf of the first defendant

1) The first defendant was ordered to effect change of ownership of the farm measuring 93.2567 hectares called Zviyambe 96, situated in Wedza district, within seven days of the order. 2) The first defendant was ordered to pay costs of the order. The court declined to grant the second part of the relief sought regarding the Deputy Sheriff signing transfer documents as the Sheriff had not been cited as a party to the proceedings.

For a valid contract of sale to exist, three essential elements must be satisfied: (1) mutual intention to sell and buy; (2) clear identification and agreement on the subject matter (merx); and (3) agreement on the purchase price which must be serious, fixed or capable of ascertainment, and sound in current money. A valid sale agreement is concluded when the parties arrive at a valid and binding agreement, regardless of whether the purchase price has been paid or delivery effected. The purchase price may be fixed by the parties or determined by reference to an external standard. Conduct of the parties, including undisturbed possession over an extended period and payment of rates and taxes without payment of rent, can constitute evidence of a concluded sale agreement even in the absence of formal written documentation.

The court observed that it is improper to grant an order for or against the Sheriff or Deputy Sheriff without them being cited as parties to the proceedings, and therefore declined to grant that portion of the relief sought. The court also noted that this was not a case warranting costs on a higher scale against the first defendant despite finding against him on the merits.

This case reinforces the principles of contract law in Zimbabwe (and South African law from which Zimbabwean law derives) regarding the essential elements required for a valid sale agreement. It demonstrates that formal written agreements are not always necessary where the essential elements can be proven through conduct, oral evidence, and circumstantial evidence such as undisturbed possession and payment of rates. The case illustrates the importance of credibility assessment in determining disputed factual issues and shows that conduct consistent with ownership (such as long-term undisturbed possession and payment of obligations) can be strong evidence of a concluded sale agreement.