Lloyd Sangiweyinkosi Sibanda v Minungu Sibanda and Others

The applicant co-owned immovable property (residential stands 52 and 54 of Matsheumhlope, held under Deed of Transfer 3552/2002) with his father, the 3rd respondent. The property was sold to the 1st and 2nd respondents pursuant to an Agreement of Sale dated 5 September 2017. The applicant contended he did not know of the sale, the signature on the agreement was forged, and he was in Canada on the date reflected on the agreement. He claimed he was never indebted to the 1st and 2nd respondents and sought cancellation of the sale agreement. The 1st and 2nd respondents opposed, asserting that the applicant had given his father a Special Power of Attorney on 30 January 2017 while in Canada, authorizing the 3rd respondent to sell the property and sign all necessary documents. The sale arose from an earlier aborted 2013 sale where US$76,000 deposit was paid but not refunded, leading to an acknowledgement of debt. This amount stood as deposit for the 2017 sale, with the balance of US$69,750 paid in instalments. The full purchase price was paid by 2019 and the respondents were in occupation.

• Whether there was a valid Agreement of Sale between the applicant and 3rd respondent as sellers and the 1st and 2nd respondents as buyers
• Whether the 3rd respondent had authority to act on behalf of the applicant through a Special Power of Attorney
• Whether the applicant validly revoked the Power of Attorney
• Whether the applicant's failure to disclose the Power of Attorney issue in the founding affidavit was fatal to his case
• Whether the 1st and 2nd respondents were entitled to specific performance and transfer of the property
• Whether the matter should be referred to trial to resolve disputes of fact

1. The application for cancellation of the Agreement of Sale was dismissed with costs on attorney-client scale. 2. The counter-application was granted with costs on attorney-client scale. 3. The applicant and 3rd respondent were ordered to sign all papers necessary to effect transfer of the property into the 1st and 2nd respondents' names within 10 days. 4. Failing compliance, the Sheriff of the High Court was authorized to sign all such papers to effect transfer.

Where a principal grants an agent a Special Power of Attorney to act on their behalf, the principal is bound by the actions of the agent performed within the scope of that authority. An applicant's cause of action in motion proceedings is determined by what is set out in the founding affidavit, and material facts known to the applicant but deliberately omitted cannot be raised belatedly to create a dispute of fact warranting referral to trial. A party who has fully performed their obligations under a contract is entitled to specific performance, and the court will exercise its discretion to grant such relief where there is no cogent reason to deny it. Material non-disclosure and lack of probity in litigation warrants censure through costs orders on an attorney-client scale.

The court made several observations about proper conduct in litigation: (1) If a party has the presence of mind to formally grant a Special Power of Attorney for disposal of valuable assets, they should equally formally revoke such authority if they wish to do so; (2) Sellers of property ought not to try and resile from sale agreements simply because, with the passage of time, the decision to sell has proved unwise or not beneficial; (3) Where parties are legally represented and there is correspondence showing full payment, supporting affidavits from legal practitioners would strengthen a case if the allegations were true; (4) The court questioned why the applicant proceeded by motion proceedings when he knew the Power of Attorney issue required ventilation through action proceedings, particularly after being alerted to this in earlier proceedings.

This case reinforces several important principles in Zimbabwean law: (1) the principle that an applicant's cause of action must be clearly set out in the founding affidavit and material facts cannot be raised belatedly; (2) the binding nature of agency relationships created through a Special Power of Attorney; (3) the court's willingness to grant specific performance where a party has fulfilled their contractual obligations; (4) the importance of probity and full disclosure in motion proceedings; (5) that parties cannot resile from sale agreements due to subsequent regret; and (6) that lack of probity and material non-disclosure warrants punitive costs orders on an attorney-client scale. The case demonstrates the court's intolerance for disingenuous litigation conduct.