On 27 March 2009, the applicant (Munyanyi) sold immovable property (Stand 2902 Bluff Hill Township) to the first respondent (Liminary Investments) for US$230,000. The agreement of sale provided for a deposit of US$130,000 upon signing and the balance by 30 June 2009, with all payments to be made by Dr Mushonga on behalf of the purchaser. The agreement stipulated that occupation would be given only upon transfer. A total of US$167,000 was paid, leaving a balance of US$63,000. Before the balance was paid, the applicant voluntarily allowed the first respondent to take occupation of the property 'in good faith' on the understanding that Dr Mushonga would pay the balance. Dr Mushonga passed away in August 2009 without paying the balance. The applicant demanded payment and vacation of the premises, and when the first respondent refused, she brought this application for eviction.
The application for eviction was dismissed with costs.
Where parties to a contract, by their conduct and without restriction by a non-variation clause, vary a term of their agreement (in this case, the date of occupation), both parties are bound by that variation regardless of one party's unexpressed mental reservations, in accordance with the doctrine of quasi-mutual assent. The objective theory of contract prevails: where by word or deed one party communicates a certain position to the other and that position is accepted, both parties are bound. A party cannot later unilaterally withdraw from a contractual variation that has been implemented and accepted by both parties on the basis that it was merely an 'indulgence' when the variation was not expressed as such to the other party.
The court made observations on the effect of novation, noting that the delegation of the purchaser's payment obligations to Dr Mushonga with the seller's consent acted as a novation that divested the first respondent of its obligations and burdened Dr Mushonga with performance under the contract. Consequently, any indulgences regarding performance could only have been granted to Dr Mushonga, not the first respondent. The court also distinguished between waiver (a defence to alleged breach of contract), variation of contract, and indulgence, noting that waiver was inapplicable where no breach by the first respondent was alleged and the first respondent had no remaining obligations under the contract after novation.
This case is significant in Zimbabwean (and by extension South African) contract law as it reinforces the doctrine of quasi-mutual assent and the parties' freedom to vary contractual terms. It clarifies that parties are bound by their objective conduct and communications to each other, regardless of unexpressed mental reservations. The case also illustrates the distinction between variation of contract, indulgence, and waiver, and demonstrates how courts will objectively determine consensus ad idem. It emphasizes that in the absence of a non-variation clause, parties retain unlimited power to vary their contracts, and such variations can be established through conduct as well as express agreement.