Marie Storm Gillespie v Sikengele Msema

The applicant sold property Stand 3762 Bulawayo (3 Blake Road Malindela) to the respondent on 11 May 2005 for ZW$332,000,000. The parties, both leaving Zimbabwe (respondent to UK, applicant to New Zealand), agreed payment in foreign currency. On 19 May 2005, the respondent signed an acknowledgment of debt for ZW$330,000,000 (after deducting ZW$2,000,000 already paid), converted to £31,050.05 at the prevailing exchange rate of Z$10,628 per £1, payable in monthly installments of £600. The respondent paid only £14,550 in irregular installments and then claimed the purchase price should be £15,000, seeking specific performance and transfer in HC 2818/13. The applicant filed a counterclaim for cancellation of the agreement and applied for dismissal of the respondent's claim under rule 75 (frivolous/vexatious) and summary judgment on her counterclaim.

• Whether the respondent's claim for specific performance was frivolous or vexatious under rule 75 of the High Court Rules, 1971
• Whether the applicant was entitled to summary judgment on her counterclaim for cancellation of the sale agreement
• Whether the respondent was bound by the acknowledgment of debt signed on 19 May 2005
• Whether the applicant could retain the partial payment of £14,550 pending determination of damages under clause 8(2) of the agreement

1. The respondent's claim in HC 2818/13 was dismissed with costs. 2. Summary judgment was entered in favor of the applicant on her counterclaim: (a) The agreement of sale dated 11 May 2005 in respect of Stand 3762 Bulawayo (No. 3 Blake Road Malindela) was cancelled; (b) The applicant was authorized to retain the sum of £14,550 paid by the respondent pending determination of damages suffered as a result of the respondent's breach; (c) Costs of suit were awarded to the applicant.

1. Parties are bound by the terms of agreements they freely and voluntarily enter into, and courts will not rewrite contracts for them but will enforce them according to their terms (principle of sanctity of contract). 2. A claim is frivolous or vexatious under rule 75 if it is obviously unsustainable, manifestly groundless, utterly hopeless and without foundation - particularly where a plaintiff seeks specific performance but admits not paying the full purchase price. 3. A party seeking to escape contractual obligations must demonstrate grounds for repudiation such as duress; mere assertion of "no meeting of minds" without evidence is insufficient. 4. Summary judgment may be granted where the applicant's case is unassailable and the respondent fails to show a mere possibility of success or triable issue. 5. A seller is entitled to cancel a sale agreement for material breach where the purchaser fails to pay the purchase price as agreed, and may retain partial payments pending determination of damages where the contract so provides.

The court noted that most submissions made on behalf of the respondent regarding enforcement of penalty stipulations under section 4 of the Contractual Penalties Act [Chapter 8:04] were irrelevant and misplaced, as the applicant was not seeking to appropriate the money paid but merely to enforce clause 8(2) allowing retention pending damages assessment. The court also observed that there was an obvious typographical error in the acknowledgment of debt regarding the exchange rate presentation (stating £10,628 per Z$1 instead of the reverse), but neither party raised this issue, presumably recognizing it as a typing error. The court remarked that applications for dismissal under rule 75 and for summary judgment are extraordinary remedies that restrict a party's right of access to court, but courts must protect their integrity and the rights of bona fide litigants by restricting vexatious litigants.

This case reinforces the fundamental principle of sanctity of contract in Zimbabwean law, confirming that courts will not rewrite contracts for parties who have entered into agreements freely and voluntarily. It demonstrates the application of rule 75 of the High Court Rules, 1971 for dismissal of frivolous or vexatious claims, and clarifies the standard for summary judgment applications. The case also illustrates the enforceability of acknowledgments of debt and the seller's rights to cancel sale agreements and retain partial payments pending damages assessment where purchasers materially breach payment obligations. It provides guidance on when claims are "obviously unsustainable, manifestly groundless or utterly hopeless" warranting summary dismissal.