Lloyd Sesa Musarurwa Kapena and 45 Others v Hawkflight Construction and Umguza Rural District Council

The applicants (46 purchasers) entered into agreements of sale with the 1st respondent for residential stands, whereby the 1st respondent would develop and construct dwelling houses at a specific cost, with purchasers paying in instalments over an agreed period. Houses were delivered between 2012 and 2013. The applicants contended that the houses supplied were substandard and the work was shoddy. Issues arose over payment of instalments, with some applicants defaulting. Following meetings to resolve payment issues, applicants raised concerns about substandard structures. The applicants then resolved to stop making payments to the 1st respondent while continuing to occupy the houses. The parties agreed to refer the dispute to arbitration, which the applicants had initiated. On 1-2 November 2014, the 1st respondent sent messengers to all applicants advising that anyone who did not continue paying would be evicted during the first week of November 2014. The applicants asserted that the 1st respondent had previously locked out defaulting purchasers over the past 3 years.

• Whether the applicants had established a prima facie right to an interdict preventing the 1st respondent from locking housing units or entering them without consent
• Whether the applicants approached the court with clean hands given their refusal to pay instalments under the agreement
• Whether the court should grant interim relief to parties who were in breach of their contractual obligations pending arbitration
• What constitutes the appropriate status quo pending arbitration of a contractual dispute

The application was dismissed with costs.

A party to a contract who unilaterally breaches their contractual obligations (by ceasing payments) while seeking to retain benefits under the contract (occupation of property) cannot establish a prima facie right to interim relief preventing the other party from enforcing the contract. The doctrine of clean hands requires that a litigant seeking equitable relief must not themselves be engaged in unlawful or wrongful conduct. Pending arbitration of a contractual dispute, parties must maintain the status quo by continuing to perform their contractual obligations - they cannot suspend performance while retaining benefits and seek court protection for such conduct. A court will not grant relief to legitimize a wrongful act by a party to a contract.

The court observed that if the 1st respondent's threatened evictions were to be carried out lawfully, there might be nothing wrong with them, but if the 1st respondent took the law into its own hands to carry out evictions, such actions would be unlawful. The court suggested that applicants had two proper courses of action available: either (1) remain in occupation while making requisite payments and await arbitration, or (2) resile from the contracts, surrender the units, stop payments and demand a refund at arbitration. The court noted it was "unheard of" for parties to refrain from paying while remaining in occupation. The court cited Rigid Group Transport Pvt Ltd v Remington Gold Pvt Ltd and 4 others HH 110/11 in support of the clean hands principle.

This case establishes important principles regarding interim relief in contractual disputes pending arbitration in Zimbabwean law. It reinforces the principle that parties seeking equitable relief must approach the court with clean hands and cannot obtain court assistance while simultaneously breaching their contractual obligations. The case clarifies that pending arbitration of contractual disputes, parties must maintain the status quo by continuing to perform their obligations under the contract, rather than unilaterally suspending performance. It demonstrates the court's reluctance to grant interim interdicts to parties who are themselves in breach of contract, even where they allege the other party has also breached. The judgment emphasizes that courts will not legitimize wrongful conduct by granting relief to a party who is actively breaching a contract while seeking protection from the consequences of that breach.