Maltina Mashava v Anywhere Mutambudzi and Others

On 25 September 2001, the applicant and first respondent entered into an agreement of sale for immovable property, Stand number 2684 Marlborough Township. According to the agreement, the seller was to transfer title by no later than 25 September 2001. The applicant paid ZW$225,000. The first respondent alleged the purchase price was ZW$325,000 and that the applicant had only paid ZW$225,000. No transfer of title was effected in 2001. In January 2018, when the applicant wanted to sell the property, she contacted the first respondent to effect transfer of title. The first respondent demanded a 'top-up' payment, alleging full purchase price had not been paid and that she had signed the agreement under duress because the applicant's husband was her boss. The applicant then filed this application for an order compelling transfer of title.

• Whether the applicant's claim for specific performance had prescribed in terms of sections 2 and 15 of the Prescription Act [Chapter 8:11]
• Whether the applicant established a proper cause of action for specific performance
• Whether the Magistrates' Court jurisdiction clause in the agreement ousted the High Court's jurisdiction
• Whether the matter should be referred to trial or could be determined on the papers

The application was dismissed with costs.

Where an agreement of sale for immovable property specifies a date by which transfer is to occur, the prescription period for a claim for specific performance begins to run from that specified date. In terms of section 15(d) of the Prescription Act [Chapter 8:11], the debt prescribes three years thereafter unless the prescription period is interrupted. A demand for specific performance made after the three-year prescription period has expired is time-barred. Furthermore, in application proceedings for specific performance, the founding affidavit must establish a proper cause of action, including that the debtor was placed in mora before prescription began to run. The High Court's original jurisdiction under section 13 of the High Court Act [Chapter 7:06] and section 171 of the Constitution cannot be ousted by a contractual agreement between parties designating a different forum.

The court observed that the applicant's legal practitioner had failed to make the proper link between the facts and the order sought when settling the founding affidavit, noting that the applicant 'sat on her rights' and could not be rewarded for such inaction. The court also distinguished the Van Brooker v Madhanda case, noting that in that matter there was no agreed date for performance in the agreement, whereas in the present case the agreement specifically stated the date by which transfer was to occur, making the determination of prescription straightforward from the papers without need for a trial.

This case confirms the strict application of prescription periods under the Prescription Act to claims for specific performance of contracts for sale of immovable property. It clarifies that where an agreement specifies a date for performance, prescription begins to run from that date, and the three-year period is strictly enforced. The judgment also reaffirms that the High Court's constitutional and statutory original jurisdiction cannot be ousted by contractual clauses designating another forum. The case provides guidance on the requirements for establishing a cause of action in application proceedings for specific performance, particularly the need to demonstrate that demand was made within the prescription period.